AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
District Court 7 December 2023

R v Doolan (No 2)

[2023] NSWDC 600

Theft & property

Citation: R v Doolan (No 2) [2023] NSWDC 600
Court: District Court of New South Wales
Date: 7 December 2023
Judge(s): Haesler SC DCJ

Background

The offender, a young man born in June 2000, appeared for sentencing on two break and enter offences committed on 9 November 2022 in the Illawarra region, shortly after his release on parole. On that day, he was observed attempting to enter a garage at a Thirroul property while the homeowner was present, and he left after making excuses. The homeowner later discovered that garage keys had gone missing.

Later the same day, the offender travelled by train to Helensburgh, broke into a dwelling while the occupant was away, and stole car keys and cigarettes. He then used the keys to take the occupant's Mercedes Benz. The vehicle theft was not a charge before the court but was taken into account on a Form 1 (a procedure that allows the court to consider additional offences when sentencing without imposing separate punishment for them).

The offender was arrested on 18 November 2022. He had been released on bail by the same judge in October 2023 to test whether an Intensive Correction Order (ICO, a community-based sentence) was viable, but he breached those bail conditions. He appeared for sentence having served time in custody since April 2023.

  • What was the objective seriousness of each offence, having regard to the circumstances and the applicable maximum penalties?
  • What weight should be given to the offender's deeply disadvantaged background, including childhood trauma, abuse in juvenile detention, and entrenched mental illness, in mitigation?
  • Whether a community-based sentence (Intensive Correction Order) was appropriate in light of community safety considerations.
  • How to structure an aggregate sentence, including partial accumulation, to reflect the overall criminality while avoiding double-counting.
  • Whether special circumstances existed to justify a variation to the standard ratio between non-parole period and head sentence.

Decision

His Honour assessed the objective seriousness of both offences as falling towards the lower end of the range for this type of offending, noting that the intrinsic harm was significant but that more serious examples of both offences regularly come before the courts. The aggravated offence (section 112(2)) carried a maximum of 20 years and a standard non-parole period of five years. The fact that someone was present at the Thirroul property during the first offence elevated the risk, even though no confrontation escalated. The Form 1 vehicle theft was taken into account in assessing the seriousness of the second offence and informed the weight given to specific deterrence and community protection.

The offender's subjective case was described as profound. Since turning 18, he had spent only around six months in the community in four and a half years. His childhood was marked by exposure to extreme domestic violence, drug abuse, and the death of a younger sibling at his mother's hands (his mother was acquitted on grounds of mental illness). He had reportedly been subjected to unlawful treatment in juvenile detention. His Honour applied the principles from Bugmy v The Queen and R v Fernando, reducing the offender's moral culpability because of the inextricable links between his offending and his history of deprivation, trauma, and mental illness. At the same time, the court acknowledged those principles do not operate only in mitigation and that community protection remained a significant countervailing consideration.

An ICO was not imposed. The court had previously granted bail to test the viability of a community-based sentence with NDIS support and accommodation, but the offender breached bail and further offending apparently occurred. His Honour expressly declined to punish the offender for the bail breach itself, treating it as a matter for another court, but concluded that the community safety threshold for an ICO could not be met. Citing Hoskins v R, His Honour noted that where the relevant factors produce genuine uncertainty, the better course may be to err on the side of leniency, and the sentence ultimately imposed reflected that approach.

Guilty pleas attracted a 25% utilitarian discount. Some accumulation of sentences was applied because two separate homes were violated, even though both offences occurred on the same day as part of a connected course of conduct. Special circumstances were found, justifying a longer parole period than the statutory default, to facilitate supervision and support on release.

Orders Made

  • Indicated sentence of 2 years and 6 months imprisonment for each offence.
  • Indicated non-parole period of 1 year and 5 months for the aggravated break and enter (section 112(2)) offence.
  • Aggregate sentence of 2 years and 11 months imprisonment, commencing 6 April 2023.
  • Aggregate non-parole period of 1 year and 8 months, expiring 5 December 2024 (earliest release date).
  • A further non-parole period of 1 year and 3 months to run from 6 December 2024, expiring 5 March 2026.
  • The vehicle theft (section 154A(1)) was taken into account on a Form 1 in relation to the second offence.

Key Takeaways

  • The District Court confirmed that the principles in Bugmy v The Queen and R v Fernando operate to reduce an offender's moral culpability where offending is inextricably linked to childhood deprivation, trauma, and mental illness, but those principles do not eliminate countervailing considerations such as community protection.

  • Falling towards the lower end of the objective seriousness range does not insulate an offender from full-time custody where community safety requirements prevent the imposition of an Intensive Correction Order under section 66(1) of the Crimes (Sentencing Procedure) Act 1999.

  • A Form 1 offence does not attract separate punishment, but it does bear on the assessed seriousness of the principal offence and can appropriately increase the weight given to specific deterrence and community protection, consistent with the guideline judgment in Ponfield v R.

  • Where two separate premises were violated in the same course of conduct on a single day, some accumulation of sentences remained appropriate to reflect the distinct harm to each victim.

  • Citing Hoskins v R, the court acknowledged that where countervailing sentencing factors produce genuine uncertainty in a case involving a profoundly disadvantaged young offender, erring on the side of leniency may be the appropriate course.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 112(1), 112(2), 154A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 66(1)

Cases
- Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
- Hoskins v R [2021] NSWCCA 169
- Jackson v R [2010] NSWCCA 162
- Jinnette v R [2012] NSWCCA 217
- Kentwell v R (No 2) [2015] NSWCCA 96
- Ponfield v R [1999] NSWCCA 435; (1999) 48 NSWLR 327
- R v Doolan [2023] NSWDC 472
- R v Doolan (No 2) [2010] NSWSC 194
- R v Fernando (1992) 76 A Crim R 58
- R v Hookey [2018] NSWCA 147
- R v Huynh [2005] NSWCCA 220
- R v Lewis [2014] NSWSC 1127
- Veen v The Queen (No 2) [1988] HCA 14